Law Commons^™

Peerage Privileges Since The House Of Lords Act 1999, Noel Cox

Noel Cox

The recent and ongoing reform of the House of Lords in the United Kingdom, which has thus far seen the passage of the House of Lords Act 1999, which excluded almost all hereditary peers and peeresses from the House, has focused attention upon the appointment process for membership of the upper house, whether hereditary, appointed, or elected. Less attention has been paid to the role of the peerage. Though officially it is said that any proposals for substantial reform of the composition of the Lords will have to look at the Lords’ role, powers and procedures and its relationship with …

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

Alexandra B. Klass

This Article considers the broad range of “tort experiments” states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called “federalism revolution” of the 1990s to limit Congressional authority in the name of states’ rights, …

Independent And Adequate, Carrie Leonetti

Carrie Leonetti

No abstract provided.

Some Penetrating Observations On The Fifth Anniversary Of Lawrence V. Texas: Privacy, Dominance, And Substantive Equality Theory, Shannon Gilreath

Shannon Gilreath

This article, “Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory,” asks the reader to look at the equality claims of minority groups at a new conceptual level. With the Lawrence decision as its critical paradigm, the essay proceeds through several observations on the failure of privacy/substantive due process grounded opinions to deliver rights to minorities. This discussion feeds an ultimate criticism of the equality analysis (or lack thereof) of many of the Court’s principal minority rights opinions. Particularly, I am critical of the longstanding notion that equal protection of the laws …

The Rise And Fall Of States: Some Constitutional Modelling, Noel Cox

Noel Cox

From Gibbons’ Decline and Fall of the Roman Empire, onwards – and indeed even earlier – there have been various attempts to explain the apparent mystery of why some civilisations rose and fell, apparently without reason, or at least without reasons that were readily apparent to the later observer (or indeed to the contemporary observer). Some of these studies have sought to identify key political or military influences – or the advent of a new technology – as affecting success or failure. Others have emphasised structural elements, such as the existence or absence of critical environmental factors. In a comparatively …

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

The 'Trial Warrior': Applying Sun Tzu's The Art Of War To Trial Advocacy, Antonin I. Pribetic

Antonin I. Pribetic

This paper takes an interdisciplinary approach to an analysis of the Western (common law) adversarial system based upon the following theory of strategic functionalism: the form (tactics based upon procedural and evidentiary rules) is a function of the content (strategy based upon legal principles and policies and client-based remedies).Applying Jungian analysis, the following three (3) conceptual models and corresponding lawyer archetypes emerge:

1.the client-centric model (e.g. the “the “Warrior” / the “zealous advocate”);

2.the justice-centric model (e.g. the “Lover/Medial”/ the “ethical professional”); and

3.the science-centric model (e.g. the “Sovereign” or the “Magician/Trickster”/ the “knowledge technocrat”).

The paper then considers whether …

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow

Rebecca E Zietlow

ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …

Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash

Kurt T. Lash

Although most scholars and courts assume that the Eleventh Amendment emerged from a sudden “shocked” public reaction to the Supreme Court’s decision in Chisholm v. Georgia, this article contends that the modern emphasis on Chisholm as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of …

Indigenous Recognition In International Law: Theoretical Observations, Patrick Macklem

Patrick Macklem

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as …

Book Review Of "How Judges Think" By Richard Posner, Charles D. Kelso, R. Randall Kelso

charles D. Kelso

This book review summarizes Judge Posner's presentation of how judges think and adds an evaluation.

The Role Of Informal Legal Institutions In Economic Development, Kevin J. Fandl

Kevin J Fandl

The purveyance of the rule of law in developing countries has frequently been associated with positive economic development. Better clarity, scope, transparency and enforcement of the laws will promote confidence and trust in the formal legal system, the argument suggests. At its core, this argument misses a fundamental yet widely recognized tangent to the rule of law – the role of informal legal institutions. The perception of legal systems perpetrated by the state - formal legal systems - is negative in many developing countries. Corruption, high costs and lengthy time periods for issue resolution limit the ability and willingness of …

The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathan R. Lahn

Jonathan R Lahn

Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early …

Why Should Lawyers Care About Institutional Data On Courts?, Maxwell L. Stearns

Maxwell L. Stearns

In the “U.S. Supreme Court Judicial Data Base: providing new insights into the Courts,” Professors Harold Spaeth and Jeffrey Segal provide a brief and valuable overview of the two Supreme Court databases, with a particular focus on how those databases might be of use to those with professional legal training, namely law professors, lawyers, and perhaps also judges. In this comment, I will describe what I consider to be the limitations, and uses, of such data for those of us trained in law, and who most likely will lack the rigorous social science background familiar to most present users of …

Judicial Paradoxes, Randolph R. Goldman

Randolph R Goldman

Paradoxes naturally arise in law. Judges as meta level actors analyze a formal system of law when they render court decisions, but they also are object level actors in the very formal system they study. The study of formal sytems in logic provides key insights into law.

The Problematic Nature Of Contractionist Statutory Interpretations, Brian G. Slocum

Brian G. Slocum

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging …

Civil Society And Its Discontents: The Two Pillars Of Edmund Burke's Legal Philosophy, James A. Todd

James A. Todd

Author’s Abstract: This article will undertake a complete survey of the jurisprudential thought of Edmund Burke. In doing so, it will attempt to place civil society as the focus of all jurisprudential elements of Burke’s thought. Burke put forward the components of a legal order that tended toward the establishment of a fundamentally liberal society, with spontaneity as the engine of both law and social growth. The positive pillar of Burke’s thought refers to the maxims of jurisprudence that foster social harmony, allowing this growth to proceed apace. The complementing, negative pillar of Burke’s legal thought focuses on protecting these …

Chasing Queers: The Radicalism Of Conservative Legal Attacks On Lesbians And Gay Men, William B. Turner

William B Turner

This article explores efforts by conservative activists to use preposterous legal arguments as the basis for their on-going efforts to attack the legal rights of lesbians and gay men. Individually, these cases are easy to overlook, partly because most of them are state cases. Also, one does not usually think of the legal issues involved -- standing, intervention, full faith and credit -- as civil rights issues. This article draws attention to these cases in order to illuminate the similarities among them in terms of conservative attacks on lesbians and gay men.

The Suspension Of Liberties, An Extension Of Rights: Examining Habeas Jurisdiction For Non-Citizen Guantanamo Detainees In The Al Odah And Boumediene Appeals, Marina A. Torres

Marina A Torres

This paper seeks to contribute to the literature surrounding the constitutional rights afforded to detainees currently held at the naval base in Guantanamo Bay, Cuba. More specifically, it offers a prospective and predictive analysis of the recent oral arguments heard in the consolidated Al Odah and Boumediene cases, held in December of 2007, in a historical context of previous judicial decisions and legislative decrees. Previous literature has not considered the constitutional protections, if any, afforded to non-citizen detainees held outside the territorial United States. Legal research has mainly focused on the application of either international law to Guantanamo detainees (if …

Book Review, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Book Review: Randall Baldwin Clark, "The Law Most Beautiful and Best: Medical Argument and Magical Rhetoric in Plato’s Laws", Lexington Books, 2004 (pp. 178 + xiv) Randall Clark has distinguished himself among a growing number of scholars taking a new look at theories of law in ancient Greek texts. The review examines a number of original features of Clark’s approach, and shows how the book sheds new light on important themes in Plato’s Republic and Laws.

'In Hindsight Everything Is Foreseeable': Ecological Harms And The Public/Private Divide, Howard Schweber

Howard Schweber

In the classic liberal language of privacy rights, individuals’ freedom should extend as far as possible consistent with the limits of the harm principle. In Part I, this article uses an examination of cases involving states’ attempts to regulate the conduct of pregnant women to argue that the application of ecological models of causation and harm expand the harm principle to the point where it destabilizes the idea of privacy rights. In Parts II and III the article presents a brief discussion of the development of ecological models of harm in American law and the replacement of a public-private divide …

Federal Courts As Constitutional Laboratories: The Rat's Point Of View, Maureen N. Armour

Maureen N Armour

This article examines the operation of the lower federal courts as constitutional laboratories where problems related to implementing the Supreme Court's problematic constitutional decisions are routinely addressed. By using the methodology of a detailed case study of Eighth Amendment litigation the author provides critical insights into the workings of the federal trial courts and three judge appellate panels and insights into the applied phenomenology of ajudicative discretion, the moving force of this judicial laboratory. The article also examines the problematic nature of the Supreme Court's constitutional decisions, their textual openness, doctrinal malleability,and prudential "errors," and how this effects the institutional …

Clearly, Using Intensifiers Is Very Bad--Or Is It?, Lance N. Long, William F. Chistensen

Lance N. Long

Although scholars have generally found that overusing intensifiers (words such as “clearly,” “obviously,” and “very”) negatively affects the persuasiveness or credibility of a legal argument, no one has studied actual appellate briefs to determine whether there is a relationship between intensifier use and the outcome of an appeal. This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an “offending” party. But--and this was an unexpected result--if an appellate opinion uses a high rate …

Economic Substance And The Standard Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Traditionally, appellate review hinged on the distinction between law and fact, producing a simplistic exercise – appellate courts review legal conclusions de novo while factual findings are reviewed under a clearly erroneous standard of review. The systemic difficulty with the fact/law distinction is defining fact and defining law. While appellate courts often create sound bites and offer elaborate musings on the definition of each, they maintain the misguided illusion that a trial court determination is either a question of law or a question of fact. In essence, an appellate court uses the fact/law distinction and the attendant standard of review …

The Unrealized Promise Of Section 1983 Method-Of-Execution Challenges, Liam J. Montgomery

Liam J Montgomery

Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge …

Oy Vey! The Bernstein Exception: Rethinking The Doctrine In The Wake Of Constitutional Abuses, Corporate Malfeasance And The “War On Terror”, Breana Frankel

Breana Frankel

Abstract OY VEY! THE BERNSTEIN EXCEPTION: RETHINKING THE DOCTRINE IN THE WAKE OF CONSTITUTIONAL ABUSES, CORPORATE MALFEASANCE AND THE “WAR ON TERROR” Breana Frankel, Assistant Professor, Chapman University School of Law The “Bernstein doctrine” is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in act of state cases when it determines that adjudication would not harm U.S.-foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. However, in the more than 50 years since its inception, the Bernstein doctrine has …

Ownership, Limited: Reconciling Traditional And Progressive Corporate Law Via An Aristotelian Understanding Of Ownership, Ronald J. Colombo

Ronald J Colombo

Concern over issues of corporate social responsibility and corporate governance persists, fueled, in large part, by recent (and ongoing) corporate scandals of one sort or another. The debate over the nature of the corporation – and, consequently, the proper role of directors, shareholders, and other stakeholders – plays an important role in the consideration of such concerns. If one conceptualizes the corporation as an entity owned by the shareholders, then one would probably be more likely to view directors as mere agents, tasked with maximizing the wealth of their principals (the shareholders). On the other hand, rejecting such a conceptualization …

Competency For Execution: The Implications Of A Communicative Model Of Retribution, Pamela A. Wilkins

Pamela A Wilkins

In Panetti v. Quarterman, ___ U.S. ___, 127 S. Ct. 2842 (2007), the United States Supreme Court opined that executions of mentally incompetent inmates lack retributive value and, for that reason, violate the Eighth Amendment. To date, however, the Court has failed to articulate a theory of retribution that makes sense of the ban on executing the incompetent. Importantly, the purely desert-based view of retribution that is the focus of most of the Court’s Eighth Amendment jurisprudence cannot account for the ban. This article attempts to articulate a theory of retribution that accounts for the Eighth Amendment ban and then …

Economic Substance And The Standard Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Traditionally, appellate review hinged on the distinction between law and fact, producing a simplistic exercise – appellate courts review legal conclusions de novo while factual findings are reviewed under a clearly erroneous standard of review. The systemic difficulty with the fact/law distinction is defining fact and defining law. While appellate courts often create sound bites and offer elaborate musings on the definition of each, they maintain the misguided illusion that a trial court determination is either a question of law or a question of fact. In essence, an appellate court uses the fact/law distinction and the attendant standard of review …

Agents Of (Incremental) Change: From Myra Bradwell To Hillary Clinton, Gwen H. Jordan

Gwen H Jordan

In this essay, the author asserts that after the Civil War, when the race and gender hierarchies that ordered American society were vulnerable, a little-studied collection of activist women lawyers led a law reform movement that established women’s rights incrementally. They were among those thinking about and experimenting with different ways of framing, securing, and enforcing women’s full and equal citizenship rights. As lawyers, licensed members of the legal profession, they operated within the conventional institutions of power – lobbying the legislatures to enact new laws and urging judges to implement a new form of legal reasoning that supported their …